If you are a federal employee who has been subjected to adverse employment actions such as removal, demotion, or lengthy suspensions, you have the right to challenge those decisions through the Merit Systems Protection Board (MSPB). However, successfully defending against agency actions requires more than just filing an appeal—it demands a well-crafted legal strategy supported by evidence and applicable defenses.
Below, we discuss the possible defenses federal employees can use in an MSPB case, highlighting how these arguments can challenge an agency’s adverse actions and protect your federal career.
Understanding the Basics of MSPB Defenses
Before diving into specific defenses, it’s important to understand the context in which they apply. Federal agencies are required to follow specific rules, policies, and merit-based principles when taking adverse actions. A successful MSPB defense typically involves demonstrating that the agency failed to comply with these standards or acted in violation of the law.
When preparing a defense, consider the following factors:
- Nature of the adverse action: What specific action (e.g., termination, suspension) is being challenged?
- Agency’s burden of proof: Agencies must provide substantial evidence to justify their actions.
- Employee’s rights: Federal employees are protected by numerous laws, regulations, and policies, including whistleblower protection laws and anti-discrimination statutes.
With these considerations in mind, let’s take a closer look at 10 potential defenses.
1. Procedural Violations
Federal agencies must follow established procedures when taking adverse actions. Failure to do so can form the basis of a strong defense. Examples of procedural errors include:
- Insufficient Notice: Federal employees are entitled to advance written notice of the charges against them and the proposed action.
- Failure to Provide an Opportunity to Respond: Employees must have the chance to respond to the charges, either orally or in writing.
- Deficient Proposal or Decision Letters: If the agency fails to include sufficient detail or justification in its decision letter, the action may be overturned.
Highlighting procedural errors can demonstrate that the agency acted arbitrarily or denied the employee due process. An experienced federal employment attorney can carefully analyze the agency’s actions to identify procedural missteps.
2. Lack of Evidence
Agencies bear the burden of proving their case by a preponderance of the evidence (or substantial evidence when it comes to performance-based cases). If the evidence supporting the adverse action is weak or inconclusive, the action may be overturned.
Your defense can focus on exposing gaps, inconsistencies, or inaccuracies in the agency’s evidence. For example, you can demonstrate that the evidence relies on hearsay or unverified reports. You may also be able to show that performance evaluations were subjective or lacked measurable benchmarks.
3. Retaliation Defense
Federal employees are protected against retaliation for engaging in protected activities, such as whistleblowing or filing complaints about workplace discrimination.
To prove retaliation, you must show:
- Protected Activity: You engaged in an activity protected by law (e.g., whistleblowing, EEO participation).
- Adverse Action: The agency subjected you to an adverse action (e.g., removal, demotion).
- Causal Link: There is a direct connection between your protected activity and the adverse action.
Gathering evidence such as timelines, communications, and testimony can strengthen a retaliation defense.
4. Prohibited Personnel Practices
The Civil Service Reform Act prohibits federal agencies from engaging in certain personnel practices, including:
- Discriminating based on race, gender, religion, or other protected characteristics.
- Favoring or disadvantaging an employee for personal or political reasons.
You can argue that the adverse action was motivated by discriminatory or improper factors.
5. Insufficient Nexus to Job Performance
In some cases, an agency’s action may lack a clear connection to job performance or efficiency, which is a critical requirement for justifying adverse actions.
Examples of Insufficient Nexus:
- Off-Duty Misconduct: An employee is disciplined for conduct unrelated to their federal employment without demonstrating how it affects their job.
- Minor Infractions: The agency cannot show how a minor rule violation impacts the agency’s efficiency or mission.
Your attorney can argue that the alleged misconduct or performance issue has no meaningful impact on your ability to perform your duties or the agency’s operations.
6. Mitigation Factors
Even if the MSPB finds that the agency’s charges are supported, it has the authority to mitigate the penalty if it is disproportionate to the offense. The Douglas Factors are often used to evaluate whether the penalty is reasonable.
Key Douglas Factors:
- The seriousness of the offense.
- The employee’s job performance and work record.
- Consistency of the penalty with those imposed in similar cases.
- The presence of mitigating circumstances (e.g., health issues, provocation).
As part of your defense strategy, you can argue that the penalty is excessive based on mitigating factors, highlighting your previous performance record, the agency’s inconsistent disciplinary practices, or extenuating circumstances surrounding the incident.
7. Affirmative Defenses
In addition to contesting the agency’s charges, employees can raise affirmative defenses. Common affirmative defenses include:
- Discrimination: The action was motivated by race, gender, age, disability, or other protected characteristics.
- Whistleblower Retaliation: The action violated whistleblower protection laws.
- Violation of Rights: The agency’s action infringed on the employee’s constitutional rights, such as freedom of speech.
Presenting a strong affirmative defense often involves gathering direct and circumstantial evidence, such as statements or actions by supervisors indicating bias or retaliation and/or comparisons to similarly situated employees who were treated differently.
8. Challenging Performance-Based Actions
Performance-based actions require agencies to adhere to specific rules and timelines. For example, they must provide notice of performance deficiencies and allow reasonable time to improve.
You can challenge the agency’s adherence to these requirements by demonstrating:
- Insufficient Feedback: The agency failed to provide clear and specific instructions for improvement.
- Unrealistic Expectations: Performance goals were unattainable or unfairly applied.
- Improvement: Evidence shows that your performance improved during the opportunity period.
9. Hostile Work Environment Defense
If the adverse action stems from a hostile work environment, you can argue that the agency’s actions were part of an ongoing pattern of harassment or mistreatment.
You can provide evidence of:
- A pattern of unfair treatment, bullying, or harassment.
- Efforts to report the hostile environment and the agency’s failure to address the issue.
10. Agency Misconduct
Agencies are held to high ethical and procedural standards. Any misconduct on their part can undermine their case. Agency misconduct can include:
- Tampering with evidence or witnesses.
- Failing to comply with discovery requests.
- Intentionally misrepresenting facts.
Identify and expose any misconduct by the agency, using it to challenge their credibility and strengthen your defense.
Crafting a Strong Defense is Crucial – Let a Federal Employment Lawyer Help
Successfully defending against an adverse action in an MSPB case requires a comprehensive strategy tailored to the specifics of your situation. Whether you’re contesting the sufficiency of the evidence, raising affirmative defenses, or highlighting procedural violations, understanding your rights and the agency’s obligations is critical.
An experienced federal employment attorney can make a significant difference in preparing and presenting your defense. Contact our office today for a consultation.
